As a Long Island Divorce Attorney practicing in Nassau County and Suffolk County, I am often asked what to do about a spouse who has fallen behind in their child support payments. (more…)
As a Family Law Attorney and Divorce Lawyer practicing on Long Island, it is critical that I stay abreast of any potential new legislation that may affect my clients’ cases in Nassau County or Suffolk County Court.
One piece of new legislation that could dramatically affect my clients is Assembly Bill A7645. This new bill would significantly change the Spousal Support (AKA Alimony) as well as Child Support for families throughout Long Island.
The bill that has been passed in the New York State Legislature awaits the signature of Governor Cuomo to take effect. Assembly Bill A7645 sets forth guidelines for determining the appropriate amount and duration of both temporary and post-divorce spousal support, and will amend the Family Court Act (FCA) and Domestic Relations Law (DRL) in this regard. At present, the court must determine the level of spousal support based upon certain factors enumerated in the DRL. The enactment of Bill A07645 would provide specific formulas that will reduce the amount of court discretion involved in the determination of spousal support.
The new bill consists of new formulas for calculation of spousal support for both temporary and post-divorce maintenance, among other changes regarding modification and termination of support, which are outlined in some detail below.
Calculating Spousal Maintenance
Assembly Bill A7645 establishes specific formulas for calculating spousal support. The method of calculation will be different depending upon whether the paying spouse is also the noncustodial parent and will be ordered to pay child support, or if there are no children or the paying spouse is the custodial parent and therefore will not be required to pay child support.
Temporary Maintenance
In particular, the bill provides formulas for determining “temporary maintenance,” the spousal maintenance that is required as the divorce is pending, and post-divorce maintenance. First, the income cap for temporary maintenance is changed from the current $543,000 to $175,000 of the payor’s (higher earning spouse’s) income. For the purposes of the formulas below, if the payor’s income is greater than $175,000, any amount higher than $175,000 will be a matter for the court’s discretion.
Formula for Divorces With Children
In cases where the payor is responsible for both spousal and child support, the formula is as follows:
“(i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income;
“(ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result;
“(iii) the lower of the two amounts will be the guideline amount of maintenance.”
When a payor is responsible for both spousal support and child support, spousal support will be calculated first using this formula. After subtracting the amount of spousal maintenance that will be paid, child support is calculated by using the income of the payor minus the spousal maintenance paid, and the income of the payee including the spousal maintenance received.
Formula for Divorces Without Children
In cases where there are no children, or where the higher earning spouse is the custodial parent, the steps for calculating spousal support are as follows:
“(i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income;
“(ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result;
“(iii) the lower of the two amounts will be the guideline amount of maintenance.”
The formulas presented by the bill provide some level of predictability for couples with moderate to low incomes. There will be less court discretion involved in determining the amount of spousal maintenance when the amount of income for the higher earning spouse is at or below the $175,000 cap. However, courts will be permitted to consider certain additional factors in certain cases in order to prevent injustice. If courts choose to use such discretion, they must set forth the particular factors or circumstances in the decision. Additional factors might include termination of a child support award, actual, partial, or anticipated retirement, and income or imputed income on assets being equitably distributed. These factors may affect the amount or duration of support.
New Guidelines for Temporary & Post Divorce Maintenance
In addition to the numerical formulas above, the bill provides other new and important considerations for temporary or post-divorce maintenance. For calculating temporary maintenance, courts may allocate responsibility for certain family expenses while the divorce is pending. For post-divorce maintenance, courts now must also consider the income derived from any income-producing property that will be equitably distributed upon divorce. Finally, actual or partial retirement resulting in a considerable decrease in income must be considered as a grounds for modification of a spousal support order.
Calculating Duration of Post-Divorce Support
The bill also provides judges with suggested ranges for the duration of maintenance awards, which applies to post-divorce maintenance only. The ranges depend upon how long the marriage lasted.
For marriages of zero to 15 years, maintenance would be awarded for 15% to 30% of the length of the marriage.
For marriages of more than 15 up to 20 years, maintenance would be awarded for 30% to 40% of the length of the marriage.
For marriages of more than 20 years, maintenance would be awarded for 35% to 50% of the length of the marriage.
However, the court retains discretion to award post-divorce maintenance without limit as to duration in appropriate cases.
Other Notable Changes
The bill eliminates “enhanced earning capacity” such as a degree, professional license, celebrity goodwill, or career enhancement, earned by a spouse as a marital asset. These “enhancements” will no longer be considered an asset for the purpose of distribution of marital assets. The bill also amends DRL Section 248 (Modification of Judgment or order in action for divorce or annulment) to make it gender neutral, so that it will also apply to married couples of the same sex.
The bill awaits approval from Governor Cuomo in order to become law. The formulas will become effective 120 days after the bill becomes law, and will not apply to existing judgments or agreements.
For more information about how this new bill might affect your divorce, or any other area of divorce or family law on Long Island, contact the Family Law offices of Hornberger Verbitsky, P.C. at 631-923-1910 for a complimentary consultation.
NOTES:
1. The bill can be found at: http://www.nysenate.gov/legislation/bills/2015/A7645. The Sponsor’s Memo can be found at http://assembly.state.ny.us/leg/?default_fld=&bn=A7645&term=2015&Memo=Y.
2. The terms “paying spouse,” “higher earning spouse,” and “payor” are used interchangeably in this memorandum. These terms are used to describe the spouse with the greater income, who is therefore the spouse responsible for paying support.
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As a Long Island Family Law attorney, I see first-hand, how the value of a father figure in a child’s life is immeasurable, yet I see some parents and families questioning or disregarding the value of legally establishing paternity. Under New York law, paternity is recognized as the legal status of being a father. The legal nature of paternity results in certain rights and responsibilities that would not exist absent the legal establishment of paternity, including child support obligations and visitation rights. The importance of establishing paternity lies in protecting the best interests of the child by providing the child with the same benefits as a child born to parents who are married.
How to Establish Paternity in Nassau County & Suffolk County, Long Island, New York
Legal Paternity in Nassau County & Suffolk County, Long Island, New York, is presumed when a child is born of a marriage and is therefore the legal child of both the father and the mother. Accordingly, if the child’s parents were married at the time of birth, paternity need not be established.
In the event a child is born out of wedlock, paternity can be established in two ways in New York. First, and most commonly effectuated, is an Acknowledgement of Paternity. In this situation, both parents sign a “Voluntary Acknowledgement of Paternity” form, in which both parents acknowledge that the man signing the form is the legal father of the child. If there is any doubt as to the identity of the natural father, this document should not be signed. The form must be signed by both parents and witnessed by two people who are not related to either of the parents. This form is usually signed at the hospital soon after the child is born; however, it can also be completed at some other time so long as it is signed by both parents and the independent witnesses in accordance with the law.
Second, paternity can be established by DNA tests, which have been shown to nearly conclusively establish whether an individual is a child’s natural father. Paternity establishment is also a way to determine the identity of the child’s biological father. In a situation where one parent does not wish to sign a voluntary acknowledgement of paternity or the natural father is unknown, a Petition may be filed with the court in Nassau County or Suffolk County. The petition may be brought by the mother, alleged father, the child, or a legal guardian of the child. The petition can be filed anytime from the pregnancy until the child turns 21 years of age. The Petition will ask the court to call both parents and the child into court in order to obtain DNA from the child and the purported natural father of the child. In this case, when the father is identified, the court will issue an Order of Filiation.
For the father, legal paternal status results in a right to legal custody, physical custody, and visitation with the child. The legal father is allowed to petition the court for visitation and custody of the child, which affects his right to be involved in his child’s life. A legal father must also be notified of any potential adoption of the child and will need his legal status as father to have standing to contest an adoption proceeding. Legal paternal status also gives the Mother the right to petition in Nassau County Family Court or Suffolk County Family Court for child support payments from the father.
Benefits of Establishing Paternity in Nassau County, Suffolk County, Long Island, New York
For the child, once paternity is established, he or she is able to have both parents’ names on their birth certificate, receive medical or life insurance from both parents, and receive increased financial security by means of inheritance, Social Security benefits, and child support. A child can also benefit from visitation or custody with his or her father.
The mother of the child benefits from having paternity established insofar as the father becomes legally responsible for the child in terms of financial support (child support), medical needs, and education. Once paternity is established, the mother may petition for child support so that the father will be legally obligated to contribute to the child’s food, clothing, school, day care, medical, and other basic expenses.
If two individuals are not married at the time of the child’s birth, and the father has not signed an Acknowledgement of Paternity, the father does not have legal rights and duties to the child and so paternity must be established. Even if parents live together or plan to marry at some future date, paternity should be established in order for the child and both parents to secure certain rights.
If you have questions about establishing paternity or how to protect your or your child’s interests in Nassau County, Suffolk County, or anywhere in New York State, reach out to an experienced family law attorney and child support lawyer who can provide personal advice and assistance. Contact us at 631-923-1910 or fill out the short form on this page and we’ll get right back to you.
As a Long Island divorce lawyer, I see first-hand, every day that one area of divorce that causes the most stress for divorcing couples in Nassau County and Suffolk County is the matter of child support. Custodial parents are concerned they will be left with a larger financial burden than the non-custodial parent and the non-custodial parent is concerned that the money provided will not be spent on the child or children’s needs.
Child support is financial support provided by a non-custodial parent for the needs of the child or children, including basic needs such as food and clothing, medical and educational expenses, child care costs, and health insurance. The amount of support may be privately arranged between parents and caretakers, or may be determined by a Support Magistrate in Nassau County or Suffolk County Family Court.
Child support obligations in New York are governed by the Child Support Standard Act (CSSA), enacted in 1989, which provides a formula for determining each parent’s responsibility to provide financially for the his or her children. The CSSA takes into account both the income and expenses of both parents in order to calculate each parent’s pro rata share of child support.
Basic child support, before considering factors such as medical or educational expenses, is determined by calculating each parent’s share of the combined parental income, and using that percentage to determine the responsibility of each party. The income calculation is based upon gross income, usually reflected in the most recent tax return, as well as other income such as disability payments, rental income, and other government or employment benefits. A court may also consider non-recurring income such as gifts or lottery winnings in its calculation.
The percentage of combined parental income that is used to calculate basic child support under CSSA is as follows:
This formula is applied to combined parental income above the poverty income guideline ($11,770 annually for a single person), and up to $141,000. If a parent’s income falls below the poverty income guideline, the minimum amount for basic child support is $300 per year. Above the $141,000 threshold, the court will consider additional factors such as parents’ financial resources, additional needs of the child, and other factors it determines to be relevant. In circumstances where the total combined parental income amounts to over $141,000 the court may, but is not required to, use the percentages set forth by CSSA.
Retroactive child support may also be awarded from the date that the support was demanded. Child support will not be owed retroactively from the date of the child’s birth unless a demand was made at that time.
A court may also impute the income of a noncustodial parent if that parent is unemployed or underemployed. This may be done by basing the child support obligation upon the earning income of the individual. The imputation of income mechanism may be used by the court in instances in which it appears to the court that an individual is attempting to avoid child support obligations by remaining unemployed or underemployed.
For example, if a noncustodial parent is working “off the books,” the court may impute the income of the individual by evaluating that individual’s expenses and expenditures. For example, if a parent shows income of $11,000 per year, but his expenditures amount to $30,000 per year, a court may impute the true income by assuming that this individual earns at least $30,000 annually.
Overdue child support may be collected by the New York State Child Support Enforcement Bureau. Garnishment of wages, interception of unemployment benefits, tax refund interception, or property execution such as seizure of bank accounts are all lawful administrative procedures by which child support obligations can be enforced without going to court. Failure to pay child support can result in a noncustodial parent being held in contempt of court. This can result in a loss of driver’s license or even jail time if a noncustodial parent is ordered to pay but does not pay. A court will consider whether a noncustodial parent has truly fallen on hard times before holding the parent in contempt of court. For example, if a noncustodial parent has lost a job, incurred a large medical expense, or presents some other exceptional circumstances, the court may withhold its power to do so. However, it is important to remember that, under CSSA, this decision is entirely within the discretion of the court.
Finally, a custodial or noncustodial parent is permitted to petition the court for a modification of his child support arrangement in order to increase the amount due to increases in cost of living, or to decrease the amount due to a loss of income.
For more information on child support, visit the New York State Division of Child Support Enforcement Child Support Standards Chart at https://www.childsupport.ny.gov/dcse/custodial_parent_info.html#whatis and https://www.childsupport.ny.gov/dcse/pdfs/cssa_2015.pdf.
For more information about how to protect yourself and your children during your divorce in Nassau County of Suffolk County, contact a Long Island divorce attorney with great experience in child support and other divorce and family law matters. Long Island’s Robert E. Hornberger, Esq., PC and his compassionate and experienced divorce lawyers can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you.
While the parents of children born out of wedlock love them just the same as if they had been born within the legal definition of a marriage, they are not treated the same under New York State law when it comes to child support or child custody. Under the Family Court Act, the parents of a child born out of wedlock are responsible for the support of that child. However, the father of a child born out of wedlock is not financially responsible for that child, nor does he have any rights to custody or visitation of that child, without an Acknowledgement of Paternity or an Order of Filiation.
An Acknowledgement of Paternity is a useful document in instances in which both parents agree that the individual seeking to be named the father of a child born out of wedlock is in fact the father of that child. This form, which is generally completed at the hospital upon the child’s birth, contains the full names of the child, the mother and the father, as well as the father’s date of birth and social security number. In order to avoid the potential for fraud, this form must be signed and notarized by both parents, in addition to being witnessed by two (2) uninterested, and unrelated, adult individuals. Once this form is properly completed, the custodial parent will have the right to receive child support on behalf of the child from the non-custodial parent, and the non-custodial parent will have the right to enjoy parenting time with the child away from the residence of the custodial parent. Naturally, this form should not be filled out if either party has any doubt as to who the father of the child is.
In the event either party refuses or is otherwise unwilling to sign an acknowledgement of paternity, the party seeking to establish paternity may file a petition in Nassau County or Suffolk County Family Court. In the event the mother of the subject child is the recipient of public assistance, the Department of Social Services is permitted to commence such an action.
Once in the Nassau County or Suffolk County Family Court on a paternity petition, the mother, the child and the alleged father will be ordered to take a genetic marker, or DNA, test. If the tests indicate there is a ninety-five percent (95%) or greater probability of paternity, a rebuttable presumption of paternity shall be established. In the event the child’s mother or the alleged father wishes to challenge this presumption, it is their burden to disprove paternity. If not disproven, paternity is established.
These types of actions can be commenced from the time the mother becomes pregnant until the child attains the age of twenty-one (21) years.
In New York, there is a rebuttable presumption that a child born to a married woman is the child of the marriage. Unfortunately, this presumption does not always ring true of the facts and circumstances surrounding the birth of a child. In such an instance, if either the mother or alleged father challenges paternity, the woman’s husband must be named in the law suit. Thereafter, the parties have the same remedies available to them as set forth above: an acknowledgement of paternity or an order of filiation.
If you reside in Nassau County or Suffolk County and you believe you are the father of an out of wedlock child, establishing paternity means you now have legal rights to your child. Moving forward with a divorce attorney, Long Island residents will be able to petition the Nassau County or Suffolk County Family Court for custody and visitation rights, and you will be given the option to contest any potential adoption of your child.
If you are the mother of an out of wedlock child, establishing paternity means you have the right to receive child support from the father. An individual cannot be ordered to pay child support on behalf of a child that he or she is not legally tied to.
Most importantly, the establishment of paternity plays a large role in the child’s life. Not only will the child now know he or she has two (2) loving parents, but the child will also be able to obtain both parents’ medical history, and have the potential ability to receive benefits under various federal and state laws on behalf of either parent.
If you have questions about the paternity of a child born out of wedlock, you should consult an experienced local divorce attorney to protect your and the child’s rights. Long Island’s Robert E. Hornberger, Esq., PC’s compassionate and experienced divorce attorneys can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you
Check out our Divorce Guide for Dads for more information about divorce issues specifically related to fathers.
What is the Child Support Standards Act?
The Child Support Standards Act sets forth guidelines which the courts on Long Island, NY must follow when determining child support. Therefore, while a court may have the authority to look to individual factors and circumstances to determine child custody, it does not have the authority to modify the amount of child support which must be paid. The amount of support the non-custodial parent is required to pay weekly or monthly depends upon the number of children for which it is meant to support; for example, if the child support is for one child, the non-custodial parent will have to pay 17% of his or her adjusted gross income, while he or she will have to pay 31% of his or her adjusted gross income for four children. The non-custodial parent will also be responsible for a percentage of the unemancipated children’s medical, dental, educational, and extracurricular expenses. These costs can be divided equally between both parents, with each paying 50% of the expenses, or calculated dependent upon what percentage of the parties’ total income each earns and then paying that respective amount.
How is Child Support Collected on Long Island?
When filing an order for child support, your Long Island Divorce Attorney should alert you to the line on the form which gives you the option to have support collected through the Support Collection Unit of the Child Support Enforcement Unit. Both Nassau County and Suffolk County as well as all boroughs of New York City have individual Support Collection Units to handle cases located within its respective geographical boundaries. If you elect to receive your child support payments through the Child Support Enforcement Unit, it will keep track of payments due to you, including amount and frequency. The Child Support Enforcement Unit has many avenues available to it which allow it to obtain child support payments before funds even reach the hands of the non-custodial parent.
What Methods of Collection are Available to the Child Support Enforcement Unit?
First, and likely the most common method employed by the Child Support Enforcement Unit is income execution. In these instances, the non-custodial parent’s employer will be ordered to withhold the appropriate amount of child support from the non-custodial parent’s paychecks. If the non-custodial parent is unemployed and receiving unemployment benefits, the Child Support Enforcement Unit has the power to levy and intercept these funds as well. Additionally, the Child Support Enforcement Unit can levy any amounts owed to the non-custodial parent such as income tax refunds or anything he or she may have won by playing the lottery.
However, not all methods involve levying funds before they reach the hands of the non-custodial parent. The Child Support Enforcement Unit also has the power to suspend the non-custodial parent’s driver’s license, deny them the ability to apply for a United States passport, or place a lien against any property they may own.
What Does This Mean for Me?
If you have concerns that your spouse will fail to timely and adequately pay court ordered child support, it would be wise to discuss the benefits of the Child Support Enforcement Unit with your Long Island Divorce Attorney. While a divorce by its nature a stressful experience, knowing you will not have to worry about actively enforcing child support payments down the road can relieve some of the stress and ensure your children receive the support they deserve.
The experienced and compassionate Long Island divorce lawyers at Robert E. Hornberger, Esq., PC can help ensure you and your children receive the Child Support they deserve. Contact us today at 631-923-1910 or fill out the short form on this page for a complimentary consultation.
Do You Have a Stipulation of Settlement in Your Long Island Divorce?
Many Long Island couples who are going through a divorce execute what is known as a Stipulation of Settlement. This document sets forth all the agreements you and your spouse have made regarding major issues, including child custody and support, what to do with the former marital residence, and property distribution.
An additional benefit of a Stipulation of Settlement is that you and your partner can include a section in the agreement concerning tax deductions and exemptions if you are both able to agree who will be claiming the children. What is becoming more commonplace is an agreement that the father will claim the children in odd years and the mother will claim the children in even years (or vice versa). If you have an odd number of children, such as three, it is not unheard of to permit the father to claim two children in odd years and one child in even years, with the mother claiming two children in even years and one child in odd years (or vice versa). Essentially, you and your ex-spouse can formalize any arrangement that you feel works best for you in your stipulation of settlement, and your Long Island divorce attorney may be able to suggest arrangements you had never thought of.
If Your Long Island Divorce Attorney Recommends Litigation
While you may want to execute a Stipulation of Settlement, it may be the case that you and your partner are simply unable to reach an agreement about one or more issues. In such instances, you can execute a Stipulation of Settlement for the issues you do agree on, and then may need to litigate on the issues you do not agree on. On occasion, the issue of which parent will claim the child as a tax deduction becomes an issue couples are unable to agree upon. In that case, the issue may require litigation. Although many believe that the custodial parent will be the one permitted to claim the child, that is not always the case; many consider that when both parents are contributing to the well-being of the child, and both parents should be entitled to the tax deduction.
Courts in New York have expressed this same sentiment. In Pachomski v. Pachomski, a Second Department case, both the custodial and the non-custodial parent were entitled to claim the children as dependents in alternating odd and even years for state and federal tax purposes. The Court reached its conclusion that “[w]here a noncustodial parent meets all or a substantial part of the child’s financial needs, a court may determine that the noncustodial parent is entitled to declare the child as a dependent” because both parents were wage earners and both contributed towards the support of the children. A similar conclusion was reached by the Court in Jurgielewicz v. Jurgielewicz. The father, who was the noncustodial parent was contributing “the majority[] of the financial support of the children.” The Court held that under the circumstances “[it] may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns.” Additionally, the Court expressly stated that “it is within the sound discretion of the court to direct that the noncustodial parent be entitled to the dependency exemption for the purposes of filing income taxes where the custodial parent has little taxable income and, thus, is unable to take full advantage of the dependency exemption.” See Mojdeh M. v. Jamshid A. Therefore, the court is permitted to look at the circumstances of each individual case and consider the income of each parent when deciding a tax deduction issue.
A tax deduction is essentially a benefit granted to parents when they file their income taxes; it recognizes the amount of money required to care for and support children. When the children’s parents are married, both file income taxes jointly and both reap the benefits. However, when parents are divorced, who will claim the child can become an issue, and that is when it is time to speak to your Long Island divorce attorney for possible solutions.
The compassionate Long Island divorce attorneys at Hornberger Verbitsky, P.C. are very experienced at negotiating Stipulation of Settlements that fairly protect your interests today and into your future. Contact us at 631-923-1910 for a complimentary confidential divorce and family law consultation or fill out the short form on this page and we’ll get right back to you.
On the other hand, as a custodial parent, you may feel that the amount agreed to by you and your ex-spouse is no longer adequately covering the needs of your children. They may be entering the age of sports and after school activities and they may need additional money to be able to participate. While your first avenue should be to speak to a Long Island divorce attorney, the following are some guidelines to educate you on what you may expect before that meeting.
While your Long Island divorce attorney will ultimately instruct you as to exactly what you need to prove your case for modification of child support, you may be able to make the process easier by keeping track of certain things beforehand. If you have lost your job and are unable to pay, keep copies of any correspondence with your former employer concerning the discharge, copies of all resumes and job applications you have sent out in an attempt to obtain new employment, and in the event you do obtain new employment you should save copies of your pay-stubs to prove what you are currently making.
If you are ill and unable to work, you should naturally save copies of any doctor’s letters that represent that fact and copies of prescriptions or anything else evidencing proof of your illness. Your case is always stronger when you can provide relevant documentation.
The experienced and compassionate Long Island divorce attorneys at Robert E. Hornberger, Esq., PC firmly believe that parents need to take financial responsibility for their children. However, we also hate to see either party, custodial or non-custodial, taken advantage of by a child support agreement that is out of date with their financial situation today. We have helped many Long Islanders modify their Child Support agreements to ensure the children are taken care of without imposing an undue hardship on either parent. Contact us today at 631-923-1910 to learn how you can have your Child Support Agreement modified to protect your children, and yourself.
Check out our Divorce Guide for Dads for more information about divorce issues specifically related to fathers.
Children Born of Marriage Deemed ‘Legitimate’ on Long Island, NY
The law in New York provides presents a strong presumption of legitimacy to children born of a marriage. This presumption arises not only from case law rulings, but also from its codification in Section 24 of New York’s Domestic Relations Law. Both provide that any child born to married parents is presumed to be “the legitimate child of both parents.” Non-marital children, therefore, are not afforded this presumption, and are seen as the legitimate child of only the mother.
Benefits of Legitimacy
In order to be the legitimate child of the father, there must be facts and circumstances to prove such. While you may be wondering why this matters, one important benefit of being afforded said presumption is what happens upon the death of a parent to whom the child is not deemed to be a legally legitimate child.
When an illegitimate child’s father dies without a will, the child must prove paternity, either through a court order or other evidence, such as the father having held the child out as his own during his lifetime, in order to inherit through the father’s intestate distribution scheme.
A second issue arises upon the divorce or separation of a couple. A parent is entitled to visitation and/or child support for a child born of a marriage; however, a parent of an illegitimate child may be legally excluded from seeing that child upon divorce or separation. Accordingly, the presumption affords marital children a large benefit over non-marital children. However, with the recent passing of New York’s Marriage Equality Act, which recognizes same-sex marriages, the issue of whether this presumption applies to same-sex marriages as well has reached the courts.
Wendy G-M. v. Erin G-M.
This case, which was heard in New York’s Supreme Court in Monroe County, centered on a child born to a same-sex couple via artificial insemination. The couple, which was legally married, consented to the procedure and executed a document providing that any child born of the procedure would be “accepted as the legal issue of [the] marriage.” The non-birthing spouse was involved in the process and pre-birth rituals, such as birthing classes and name choosing, to the same extent as the birth-spouse was, and the child’s birth certificate has both women listed as her parents. Not long after the birth of the child, the couple separated, the birth-spouse filed for divorce and subsequently prohibiting her partner to visit with the child. If the non-birth parent was considered to be the child’s legitimate parent, she would have a right to visitation and the birth mother could not legally prohibit that right without a court order.
Does the Same Presumption Apply to Same-Sex Marriages?
Because the New York Courts had previously held that the term “parent” does not contain gender-specific boundaries, the court in Wendy G-M. v. Erin G-M. held that the presumption of legitimacy applies to children born of same-sex marriages as well.
Furthermore, courts have stated that any changes in the definition of the term “parent” cannot come from case law, but rather should come from changes in legislation that represent the growing views of the community. More specifically on the topic of artificial insemination, the Domestic Relations Law provides that a child born of artificial insemination is not the legitimate child of the anonymous donor, but of the husband and wife to which the child is born. Therefore in such instances, when all statutory requirements are met, there is a rebuttable presumption that a child born of artificial insemination is the child of the marriage.
So long as both parents consent to and are involved in the procedure, and there is intent that both parties be considered to be the legitimate parents of the child, there is no legal difference between opposite or same sex marriages. As with most, this presumption is rebuttable and can be negated by either spouse; “the birth-mother could produce evidence that she never intended her spouse to be the parent … [and] the unknowing, non-biological spouse, would be required to overcome the presumption of consent, and prove lack of consent.”
What Does this Mean for Me on Long Island?
If you are in a same-sex relationship in New York, any child born of your marriage through artificial insemination, so long as there is consent on behalf of both of you and your partner, will be presumed to be the legitimate child of the marriage. Therefore, if you are seeking a divorce, the birth-spouse cannot prohibit the non-birth parent from visitation rights with the child, nor can be excused from child support payments.
The Long Island divorce attorneys and divorce mediators at the law firm of Hornberger Verbitsky, P.C. are experienced in all aspects of divorce law on Long Island, including those impacted by the recent Marriage Equality Act. To schedule an appointment for a complimentary consultation to discuss your case, contact our offices at 631-923-1910.
Under New York law, parents are required to provide care for their minor children until the age of 21. As you are going through your divorce, you may be wondering how such child support is calculated and what it means to you and your soon to be ex-spouse. While the courts have discretion in some areas of determining child support, in order to keep decisions uniform, child support calculations are mainly based upon a statutory formula. The courts use what has become known as the Child Support Standards Act to guide determinations in what is a fair and reasonable amount of child support.
How Much Will I Have to Pay in Child Support Payments?
Your most pressing concern regarding child support will likely be how much you will be paying, or receiving if you are the custodial parent, per month in support. According to the Child Support Standards Act, the non-custodial parent will pay a percentage of the combined parental income, which is the combined income of both you and your soon to be ex-spouse, dependent upon how many children you or your partner have physical custody of.
If you have custody of:
What Sources of Income are Included in Calculating the Combined Parental Income?
Aside from the salaries you and your partner receive from your respective jobs, there are outside sources of income that are taken into consideration when calculating the combined parental income for child support payments.
Other Source of Income Include (but are not limited to):
Income from these sources will be included in the calculation even if you chose to defer payment. Additionally, the court has discretion to include income from money or services provided by family or friends or any benefits, including meals and automobiles, which are provided by your employer for your personal use. Furthermore, if you are entitled to payments due to extraordinary circumstances, such as a payout from a Life Insurance policy, Inheritance under a will, or Lottery Winnings, such payments will also be included in the computing of combined parental income. Therefore, it is important that you are completely candid with your divorce attorney about any possible source of income, as it is possible that income you do not expect to be included in the calculations will be.
What if I am the Custodial Parent But am Also Currently Enrolled in School?
If you have physical custody of your children, but are in the process of obtaining a diploma or degree, you may be worried about how you can afford the cost of childcare for your children. The Child Support Standards Act seeks to remediate such concerns. Therefore, if you are enrolled in school, whether it is high school, college, or vocational school, you and your soon to be ex-spouse will split the cost of child care pro-rata. Your divorce attorney will be able to provide you more guidance as to the definition of “pro-rata”.
What if the Child Support Formula Provides an Inadequate Amount of Contributions?
In certain instances, the black and white formula provided by the Child Support Standards Act will prove to be insufficient to assist the custodial parent in caring for the children. In such instances, the court has the power to order the non-custodial parent to pay any greater amount that it finds just and appropriate. In order to determine this amount, the court will take into consideration the financial resources of both the custodial and non-custodial parent, including whether the gross income of one parent is substantially less than that of the other; the child’s health, including any special needs; and whether the non-custodial parent must incur extraordinary costs for child visitation (transportation, lodging, tolls, etc.). Keep in mind however, that this is not an exclusive list, and the court may consider any outside circumstances it deems relevant.
If you have additional questions about your rights and responsibilities regarding Child Support on Long Island, please give us a call at 631-923-1910. We’ll be happy to schedule a complimentary consultation where we can sit down and discuss your questions and concerns.
